Tuesday, October 18, 2005

Is There a Teleology of Authorship?

Wikipedia makes the following distinction between teleology and philosophical naturalism:

"Philosophical naturalism and teleology investigate the existence or non-existence of an organizing principle behind ... phenomena. Philosophical naturalism asserts that there are no such principles. Teleology asserts that there are.Thus, within philosophical naturalism, man sees because he has eyes. Within teleology, however, man both sees because he has eyes, and has eyes so he can see. As Aristotle wrote in support of teleology, 'Nature adapts the organ to the function, and not the function to the organ' ... Lucretius replied in support of philosophical naturalism: 'Nothing in the body is made in order that we may use it. What happens to exist is the cause of its use.'

There have been a number of efforts to impose a teleology on the emergence of copyright and authors. Some commentators (authors?) have attempted to explain copyright - by which they mean an author-centered system of rights - in an historical manner. They argue that at least in England, copyright was the result of the coalescing of Protestantism, a mature book trade, the development of "respectable" writers, and of Parliament's deregulatory desire to repeal the Stationers' Company monopoly. This is a "moment in time" approach: copyright was the inevitable result of a number of pressures, with the organizing principle being the desirability of authors selling the fruits of their labor in commerce without fear of piracy.

Another telelogy is that of the Romantic author, copyright as recognition of genius. Martha Woodmansee, in "The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author," Eighteenth-Century Studies 17 (Summer 1984), wrote that there was a "pressing need of writers in Germany to establish ownership of the products of their labor so as to justify legal recognition of that ownership in the form of a copyright law." This is of course circular: German writers adopted the position that they created "original" works in order to justify owning original works, and such ownership is acquired by creating original works. Circular or not, there is no denying the appeal of Romantic originality as a powerful teleology.

The U.S. Supreme Court has engaged in its own circular construction of the the Copyright Clause of the Constitution. That clause empowers Congress to grant exclusive rights to the "Writings" of "Authors." What are "writings" and who are "authors?" As it turns out, writings are what authors create, and to be protected those writings must be "original," at least that what the Court said in The Trademark Cases, 100 U.S. 82, 94 (1879). This point was reinforced in Feist, where Justice O'Connor wrote: "For a work to be classified 'under the head of writings of authors,' ... originality is required." 499 U.S. 340, 346, citing The Trademark Cases. This collapses three concepts into one, and an undefined one at that.

So, do we have copyright because we have authors or do we have authors because we have copyright, or, should we just all become philosophical naturalists?

About Me

This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.